State v. Blue, Case No. 2020AP080015

2021 Ohio 1703

STATE OF OHIO Plaintiff-Appellee v. TIMOTHY M. BLUE Defendant-Appellant

Case No. 2020AP080015

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

May 17, 2021

JUDGES: Hon. Craig R. Baldwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019CR050158

JUDGMENT: AFFIRMED

APPEARANCES:

For Plaintiff-Appellee:

RYAN STYER

TUSCARAWAS CO. PROSECUTOR

R. SCOTT DEEDRICK

125 East High Ave.

New Philadelphia, OH 44663

For Defendant-Appellant:

LINDSEY K. DONEHUE-ANGLER

217 N. 8th Street

Cambridge, OH 43725

Delaney, J.

{¶1} Appellant Timothy M. Blue appeals from the July 21, 2020 Judgment Entry of the Tuscarawas County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the record of appellant's jury trial which commenced on July 14, 2020.

Jane Doe discloses years of escalating sexual abuse

{¶3} This case arose on or around April 14, 2019, when Jane Doe disclosed to her mother ("Mother") that appellant, her biological father, systematically molested and raped her on visitations, beginning when she was seven years old. The sexual assaults were sometimes photographed and videotaped. Appellant also took nude photos of Doe and photos of Doe engaged in sexual activity.

{¶4} Doe lives with Mother in a different city and county in Ohio than appellant. At the time of the investigation, appellant lived in a trailer home in New Philadelphia and also rented a single room in a house on Front Street. Prior to living in New Philadelphia, appellant lived in various places in Mahoning and Trumbull Counties, including Youngstown, Girard, and Hubbard.

{¶5} Mother and appellant had a brief relationship resulting in Mother's pregnancy with Doe. Doe first met appellant around age two and began voluntary visitation with him around age six. Appellant obtained court-ordered visitation with Doe around age seven. Appellant began molesting Doe almost immediately upon commencement of visitation. Doe's memories of the progressive acts of abuse were associated with the various places where appellant lived and where visitations took place.

{¶6} Doe testified that early court-ordered visitations took place at appellant's grandparents' house in Girard, Ohio. Appellant began touching and molesting Doe during these visits. Doe was frightened by the touching but did not disclose to anyone; she didn't remember if appellant specifically told her not to tell. Appellant's grandparents walked in on appellant molesting her once, but said nothing about the abuse in front of Doe. No one stopped appellant from having visitation.

{¶7} Appellant next moved to Youngstown and the molestation continued, progressing to forced oral sex. Doe was around age nine. Doe testified the molestation and rapes occurred on most visits; appellant would "just tell her to do it;" and appellant climaxed during the abuse. Doe did not recall appellant threatening her to keep the abuse secret; appellant told her he would go to jail and "bad things would happen to him" if anyone found out.

{¶8} Appellant then moved across town in Youngstown, and the touching and oral sex continued.

{¶9} Appellant next moved to a residence in Boardman and lived there alone. Doe was now around ten years old. The abuse progressed to penetrative vaginal intercourse. Doe recalled the first time this happened, and that she was scared. Doe did not disclose the abuse, which continued upon every visitation.

{¶10} Appellant then moved to a different residence in Youngstown, and lived there with someone else. Doe was around ten or eleven years old. The abuse continued with touching, oral, and vaginal sex. Doe testified appellant provided her with alcohol and marijuana during visitations.

{¶11} Appellant then moved in with his father in New Philadelphia. Doe testified this was around 2016-2017, when she was twelve or thirteen years old. The abuse now included touching, oral, vaginal, and anal intercourse. Doe testified the latter hurt and scared her, although she did not disclose the abuse and visitation continued. She recalled appellant telling her that he would go to jail if she told anyone.

{¶12} Appellant then moved into a house trailer in New Philadelphia with a woman named Kayla. Doe testified the abuse continued "occasionally" at the trailer while she was around age fourteen.

{¶13} Finally, appellant obtained a room in a rundown house on Front Street in New Philadelphia, although his residence ostensibly remained Kayla's trailer. Appellant's "room" is the house's living room, walled off with blankets for privacy. It contains a bed and a chest of drawers. The house is owned by Ed Hall, who lives in the basement. Other people come and go from the house occasionally.

{¶14} During recent visitations, Doe stayed with appellant in the room on Front Street. This location is where the abuse became more "aggressive," as Doe described it. During sex acts, appellant tied Doe up, choked her, and hit her with a wooden spoon, raising welts on her skin. Appellant used what were described at trial as "sexual devices" including a ball gag, ropes, lingerie, a dildo, and a vibrator. Appellant took photos of the abuse and videotaped it. Further, Doe testified people viewed the sex abuse online as it occurred. Doe testified that no one else participated in the abuse.

{¶15} Appellee presented Doe with a number of sexually-explicit photographs and asked her to identify them. The photos were of Doe nude and engaged in sexual acts, sometimes with appellant, whose face was obscured. Doe also identified a video ofappellant having vaginal intercourse with her. Appellee presented Doe with evidence found by police at the Front Street address, including a ball gag, dildo, vibrator, ropes, and lingerie. Doe identified these items as those used during the abuse.

{¶16} Around December 2018, Doe told a friend that she was being abused. She was frightened because the abuse was becoming violent and aggressive and she didn't know what might happen next. She also refused to go to visitation with appellant.

{¶17} Doe disclosed the sexual abuse to her mother on April 14, 2019. At that point, appellant and Mother were engaged in a court battle over visitation. Mother testified that appellant had always been extremely cooperative about visitation, always showing up for visits, arranging extra visits, etc. Several incidents occurred, however, which led Mother to suspect sexual abuse. Doe began to refuse to go with appellant for visitation. In March 2019, appellant showed up at Mother's residence with a police officer, who told Mother she could be cited for contempt if she didn't allow Doe to attend visitation. Doe didn't want to go and Mother refused to make her go, despite the threat of contempt.

{¶18} Escalating tensions, Doe's resistance to visitation, Doe's behavior "acting out" and her increasing psychological problems led Mother to seek counseling for her. Doe was specifically questioned about potential sexual abuse at two different counseling facilities and she denied abuse was occurring. Doe also met with guardian ad litem several times over the course of the parties' custody and visitation litigation and did not disclose the sexual abuse.

{¶19} The day after Doe's disclosure, Mother brought her to the New Philadelphia Police Department. Detective Scott Nelson started an investigation. Doe described the Front Street room to Nelson and told him where he could find pertinent evidence. Nelsonwent to the room and photographed it with Ed Hall's permission, then obtained a search warrant. Nelson found a bag containing the "sexual devices" described by Doe and submitted them to the BCI crime lab. A forensic scientist testified DNA consistent with appellant and Doe was found on the dildo, ball gag, and ropes. Nelson also found a "Coolpad" cell phone described by Doe as the device used to take the photos and videos of the abuse. Chief Todd Beeman of the Dennison Police Department used software to extract the contents of the phone after Nelson obtained a search warrant. Doe provided the passcode, which was appellant's birthday. Nelson observed the photos and videos described by Doe.

{¶20} Appellee presented the photos, videotape, "sexual devices," and DNA results as evidence in its case in chief.

Defense case: Doe didn't disclose and denied abuse in the past

{¶21} Appellant called two defense witnesses at trial: the guardian ad litem and one of Doe's counselors from a psychiatric facility. Both witnesses testified Doe had opportunities to disclose the sexual abuse to them and did not do so.

Indictment, trial, conviction and sentence

{¶22} Appellant was charged by indictment with one count of gross sexual imposition pursuant to R.C. 2907.05(A)(4) and 2907.05(C)(2), a felony of the third degree [Count I]; one count of rape pursuant to R.C. 2907.02(A)(1)(b) and 2907.02(B), a felony of the first degree [Count II]; one count of sexual battery pursuant to R.C. 2907.03(A)(5) and 2907.03(B), a felony of the third degree [Count III]; one count of pandering obscenity involving a minor pursuant to R.C. 2907.321(A)(1) and 2907.321(C), a felony of the second degree [Count IV]; one count of pandering obscenity involving a minor pursuantto R.C. 2907.321(A)(5) and 2907.321(C), a felony of the fourth degree [Count V]; one count of pandering sexually-oriented matter involving a minor pursuant to R.C. 2907.322(A)(1) and 2907.322(C), a felony of the second degree [Count VI]; and one count of pandering sexually-oriented matter involving a minor pursuant to R.C. 2907.322(A)(5) and 2907.322(C), a felony of the fourth degree [Count VII].

{¶23} Appellant entered pleas of not guilty and filed a number of pretrial motions which are not relevant to the issues in the instant appeal. Appellee also filed several motions in limine.

Proposed testimony of Dr. Robin Tener regarding nondisclosure by child...